PORTUGAL AND INTERNATIONAL CHILD ABDUCTION
The Hague Convention on the Civil Aspects of International Child Abduction was ratified by Portugal on September 29, 1983, effective December 1, 1983.
Domestic Laws and Regulations Implementing the Hague Convention
The Central Authority for the Convention in Portugal is the Instituto de Reinserção Social- Unidade Funcional de Convenções Internacionais (IRS) of the Ministry of Justice. The Organic Law on the IRS5 provides for its competence and powers.
Return Requested from Abroad
The Central Authority has only administrative and informational competence, as established by Organic Law. Courts decide the cases of parental kidnapping and the return and visitation schedules for abducted children. The application for the return of an abducted minor to Portugal must be directed to the Portuguese Central Authority, which will, upon receipt of the return application, analyze and verify all the information and decide whether it complies with the requirements provided for under the Convention.
In order to apply for a child’s return or parental visitation, the requesting parent must authorize the Central Authority to take action, as it cannot act without prior approval of the requesting parent. Because the activities of the Central Authority are informational and administrative, a lawyer will be necessary for the judicial request, although the Central Authority may continue to provide its administrative assistance during the court proceedings. Those who cannot afford to hire a private lawyer and who qualify to obtain public funded assistance may obtain such legal aid.
At the national level, the Judiciary Police (Polícia Judiciária – PJ) is responsible for locating an abducted minor. When a child’s domicile has not been located, the Central Authority will inform Interpol, the agency internationally charged with locating the abducted minor.
Return Requested from Portugal
The requester must fill out an application for the child’s return or parental visitation, which will contain all the essential information for the location of the taken minor, including the name of the child and the child’s date of birth. The requester must submit the application to the Central Authority, which will analyze and decide whether the case meets all the requirements established under the Convention, so that it may take action.
If the Central Authority finds that an application meets all the requirements under the Convention, it will send the return or visitation petition to the Central Authority of the requested country, which will act under its own procedural norms.
Additional Multinational Efforts
Portugal is also a Member of the European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children, adopted in Luxembourg, on May 20, 1980, and ratified by Portugal13on March 18, 1983, effective September 1, 1983. The European Convention protects custody and access rights in international situations and provides prompt, non-bureaucratic assistance from Central Authorities designed by each Member State in discovering the whereabouts and returning custody of a child improperly removed. Applications for the return of custody of a child may be made directly either to a court or to the Central Authorities of any Member State concerned.
In addition, the Hague Convention concerning the Powers of Authorities and the Law Applicable in Respect to the Protection of Minors, of October 5, 1961, was ratified by Portugal on December 6, 1968, effective February 4, 1969.
Domestic Laws Regarding Child Abduction and Parental Visitation
Article 122 of the Portuguese Civil Code19 defines a minor, as the one who has not yet reached 18 years of age. In article 124, the Code states that paternal power or guardianship concludes the minority incapacity. Additionally, article 85 of the same Code states that the minor’s residence is the same as his parents, guardian, or the institution responsible for him.
Article 1887 of the Portuguese Civil Code establishes that a minor can neither abandon his parents’ residence (or the one that his parents designate), nor can he be taken away from it. If one of these situations occurs, either one of the parents, or the person in charge of the minor, may appeal to the tribunal or to the competent authority for the child’s return.
Article 249 of the Criminal Code of Portugal20 punishes child abduction with imprisonment for up to 2 years, or a fine of up to 240 days, when the child is abducted by violent or coercive means. The same punishment is applied when the abductor refuses to return the minor to the custody of his parents, guardian, or other person with custody of the minor. The criminal procedure in these cases depends upon a complaint.
Article 179 of the Criminal Code establishes that if the parent or guardian of a minor is convicted of the crimes under articles 163 to 176 (which include sexual exploitation and trafficking of children), he may lose parental power or guardianship for a period of 2 to 15 years. The paternal control over children is established under the Civil Code, articles 1885 to 1887.
Portuguese domestic family law understands paternal control as an advantage for children’s protection, not an advantage for the parents. The legislation, doctrine, and jurisprudence aim for both parents to always exercise equal paternal control, and to focus on the welfare of the minor. In fact, in the event of conflict between the parents, the decision of who will exercise the paternal control must be driven by the necessities of the minor, as well as his well being and harmonious development, as emphasized by the collected jurisprudences. Yet, paternal power is irrevocable, as stated in article 1882 of the Civil Code. Decree-Law 314/78 created the Organization of Minors’ Guardianship (Organização Tutelar de Menores – OTM), where a minor’s guardianship rights, parental visitation and other minors’ rights and procedures are established. The local framework also protects children by means of Complementary Law No. 147/9923 (Lei de Protecção de Crianças e Jovens em Perigo), which provides for the protection of children and young people that are at risk; this legislation is regulated by Decree-Law No. 332-B/2000.
U.S. – Portugal Child Support Enforcement Agreement (May 30, 2000)
The United States and Portugal signed a reciprocal child support enforcement agreement in Lisbon May 30 which provides a mechanism for recovery of alimony and child support owed by ex-spouses. The signing was in conjunction with President Clinton’s visit to Portugal.
Agreement on Reciprocal Enforcement of Child Support
Secretary of State Madeleine Albright and Foreign Minister Gama today signed an Agreement on Reciprocal Enforcement of Child Support.
This agreement provides a mechanism for Americans to recover alimony and child support owed to them by ex-spouses who are in Portugal. Conversely, Portuguese parents may file for support owed to them by ex-spouses in the United States. To use a colloquial expression, this is the international version of cracking down on “deadbeat dads” (and moms).
Under the agreement, a parent in the United States can file an application to recover delinquent maintenance payments from a former spouse. To facilitate the process, all questions will be handled through a Central Authority for International Child Support in each country. In the United States, applications are filed through the Department of Health and Human Services (HHS). HHS will forward the application to Portugal’s central authority, which will locate the parent and recover support payments. Portugal is the first country to have an official bilateral child support agreement with the United States.